Is mall voting legally feasible?

Photo by Ruy Martinez

Photo by Ruy Martinez

THE Commission on Elections (Comelec) is determined to push through with its plan to use various shopping malls all over the country as voting centers despite questions on the legality of the move.

If it pushes through, the Comelec would be setting a precedent that could change the complex of future elections as this would be the first time in the country’s electoral history that voting would be done in privately-owned malls, whose owners or members of their extended families could be related either by consanguinity or by inter-marriages to a particular candidate, which, in effect, could affect the credibility of the polls.

The Comelec is already in the thick of preparations for its grand plan even as the questions on the legality of mall voting remain hanging like a sword of Damocles that is ready to fall anytime.

So far, though, no complaint has been filed before the courts against mall voting, primarily because the Comelec en banc is yet to come up with a resolution approving mall voting, which Commissioner Andres Bautista said is enough.

According to Bautista, the resolution would be coming out soon. He told The Times it would most probably be out before end of September.

“There’s a process that we’re following. A Comelec resolution has to be passed and there will be a hearing. We will be doing that [next week before end of September],” he added.

The Comelec came up with the mall voting idea after noting a heavy turnout of registrants in its “no bio, no boto” registration campaign held inside malls during weekends.

Bautista said he sees no legal impediments why voting should not be allowed inside malls, contrary to the opinion of legal luminaries, which include Sen. Aquilino Pimentel 3rd, election lawyer Romulo Macalintal and even former Comelec Commissioner Gregorio Larrazabal.

Pimentel, a Bar topnocher, said registration inside malls is alright but not the holding of elections there.

“Voting must be done in voting centers which are public property and not private property which are subject to the regulations of the owners,” he said in a statement.

Larrazabal and Macalintal expressed similar concerns, saying mall voting runs counter to provisions of the Omnibus Election Code, particularly Section 155.

Section 155 of Batas Pambansa 881, or the Omnibus Election Code of the Philippines, states, “No polling place shall be located in a public or private building owned, leased or occupied by any candidate or of any person who is related to any candidate within the fourth civil degree of consanguinity or affinity or any officer of the government or leader of any political party.”

Larrazabbal said the move needs to be studied further, otherwise it would create a lot of problems later, which include possible disenfranchisement of voters as well as procedural and jurisdictional issues.

Macalintal, a prominent election lawyer, explained that the law sets only three parameters on the transfer of polling places, namely: through petitions of political parties, through a vote of 50 percent of the voters or by a Comelec resolution if existing precinct is no longer usable.

He pointed out that there would be a conflict of interest if the mall is owned by a political clan or a family that has a member running for office.

Also registering its opposition is the Comelec-accredited Church-based election watchdog Parish Pastoral Council for Responsible Voting (PPCRV), which said the plan should be abandoned for further study.

PPCRV chairman Henrietta de Villa said using facilities of big malls as voting centers may not be prudent and may be in violation of election laws.

While it claims to be Church-based, the Catholic bishops have denied authorizing it to be the voice of the Church in election matters. PPCRV has raised eyebrows for being an exponent of the Smartmatic deals.

But Bautista is unfazed, saying that as a teacher of Constitutional law he knows his what is right and wrong.

“A simple Comelec resolution that would allow the holding of elections in malls would suffice,” he pointed out.

Bautista said “the law is not absolute,” adding that “what is prohibited by the Omnibus Election Code is the use of private facilities that are owned by candidates or by their relatives.”

He said the Comelec cannot use the facilities of the Gateway Mall and Ali Mall, which are owned by the family of Liberal Party standard-bearer Manuel Roxas 2nd and the chain of Star Malls of the Villars.

According to Bautista, Batas Pambansa 881 is already outmoded, having been crafted during the administration of then-President Ferdinand Marcos.

“It’s the practical way. BP 881 was passed during the time of Marcos. There are lots of outmoded ways that are still in the law. Many changes have occurred in our society, technological and otherwise and I think we have to use these changes for the benefit of society,” he said.

“Why not look at the possibility of voting in malls? We believe it will encourage people to go out and vote,” the poll chief added. “This is a step in the right direction and this will enhance the voting experience of our voters.”

Bautista disclosed that they have already secured commitment of eight mall owners, who were all amenable to their wish list that includes needed physical requirements, provisions, amenities, signages and markers and human resources.

He identified the participating malls as SM Supemalls, Ayala Malls, Robinsons Malls, Gaisano Grands Malls, Megaworld Lifestyle Malls, Pacific Malls/Metro Gaisano, Walter Mart Community Malls and Fisher Malls.

Bautista said mock elections would be held in January 2016 in several venues including in the malls.

He, however, pointed out that not everybody would be able to vote in the malls because conditions at present only allow precincts that are adjacent to the malls.

Bautista said an estimated two to five million voters would be able to benefit from the planned mall voting, particularly in barangay that are close or near the malls.

“We are looking at the right number [of voters]that will be transferred. The larger the mall, the bigger the number that will be transferred,” he added.

Priority, he pointed out, would be given to precincts with the most number of voters, senior citizens and persons with disability.

As of July 20, 2015, Comelec records showed a total of 52,336,844 registered voters.

As of August 30, there were still 3,130,377 voters without biometrics.

But critics of the Comelec decision to use Smartmatic PCOS machinese under another name say all these discussions are exercises in futility because as in the 2010 and 2013 elections, it is what Smartmatic and its techies manipulating t5he PCOS OMR machines who will decide the election winners.


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